State v. Vaughan

• Decision Date: 04 December 1906
• Citation: 98 S.W. 2,200 Mo. 1
• Parties: STATE v. VAUGHAN et al.
• Court: Missouri Supreme Court

98 S.W. 2

200 Mo. 1

STATE v. VAUGHAN et al.

Supreme Court of Missouri, Division No. 2.

December 4, 1906.

1. CRIMINAL LAW—RES GESTÆ—OTHER OFFENSES AS PART OF THE TRANSACTION.

On a trial for the murder of a prison guard, committed by convicts pursuant to an agreement to intimidate the officers of the prison to enable them to escape therefrom, evidence of the killing of another guard at the time was admissible as a part of the res gestæ.

2. SAME—PROOF OF OTHER OFFENSES—ADMISSIBILITY.

On a trial for the murder of a prison guard, committed by convicts pursuant to an agreement to forcibly break prison and escape therefrom, and thereby commit a felony under Rev. St. 1899, § 2067, evidence of the killing of another guard in furtherance of the success of the agreement was admissible.

3. SAME.

On a trial for the murder of a prison guard, committed by convicts pursuant to an agreement to forcibly break prison and escape therefrom, evidence of the killing of another guard in the furtherance of the success of the agreement is admissible, though there was no evidence that there was an agreement to kill him.

4. SAME—JOINT TRIALS—INSTRUCTIONS.

Where several persons are jointly prosecuted for a homicide, and the court charges that defendants are presumed to be innocent, and that it devolves on the state to prove their guilt beyond a reasonable doubt before a verdict of guilty may be rendered, it is error to refuse to charge that the jury are at liberty to find one or more of the defendants guilty and the others not guilty.

5. SAME—INSTRUCTIONS EMBODIED IN THOSE GIVEN.

Where, on a trial for homicide, the court charged that accused was presumed to be innocent, and that it devolved on the state to prove his guilt beyond a reasonable doubt, and that unless his guilt had been established beyond a reasonable doubt a verdict of not guilty should be rendered, etc., the refusal to charge that if the jury had a reasonable doubt as to the guilt of accused the jurors must acquit was not erroneous.

6. HOMICIDE—MURDER IN FIRST DEGREE.

Where a prison guard was murdered by convicts in accordance with a previous concerted plan by them to forcibly break prison and make their escape, all were equally guilty of murder in the first degree, the killing being committed in the perpetration of a felony.

7. CRIMINAL LAW—INSTRUCTIONS—EVIDENCE TO SUSTAIN.

Where, on a trial for the murder of a prison guard, committed by convicts in pursuance of an agreement to forcibly break prison, the evidence showed that the convicts with pistols in their hands commanded the deputy warden to hold up his hands, threatening to kill him if he refused, that the deputy warden endeavored to draw his pistol, that one of the convicts fired his pistol, striking the deputy warden, that subsequently decedent was killed by them while they were attempting to make their escape, and the convicts testified that it was agreed between them that no one should be killed in their effort to break out of prison, the refusal to charge that if one of the convicts killed decedent and the killing was a departure from their joint plan, and the other convicts did not advise, instigate, or assist in the killing, the latter were not guilty, was properly refused, because predicated on testimony inconsistent with the physical facts.

Appeal from Circuit Court, Cole County; Wm. H. Martin, Judge.

Harry H. Vaughan and others were convicted of murder in the first degree, and they appeal. Reversed and remanded.

E. L. King and Edwin Silver, for appellants. The Attorney General and N. T. Gentry, for the State.

BURGESS, P. J.

Appeal from the judgment of the circuit court of Cole county rendered January 2, 1906, upon a verdict convicting the defendants of the crime of murder in the first degree, the punishment for which is death. The conviction was for having killed and murdered one John A. Clay, who was at the time a guard at the Missouri Penitentiary, and in the discharge of his duties as such. The defendants and one Hiram Blake were, at the time of the commission of the alleged crime, legally imprisoned in said penitentiary. That around the buildings and grounds of said penitentiary there is and was a high stone wall, and that the entrances are in the west wall. A short distance north of the north wall are situated the tracks of the Missouri Pacific Railroad Company, and a few feet north of said tracks is the Missouri river. There are two entrances referred to by the witnesses in this case; one of them, being through the office in the administration building, entered the grounds through an ordinary door opening into an iron cage, and the other one being the wagon entrance. This last-named entrance was used by all vehicles that had occasion to go in and out, and consisted of two sets of double doors, situated some distance from each other. On the 24th day of November, 1905, R. E. See was deputy warden, and John A. Clay, E. Allison, J. K. Young, and John Bruner were guards at said prison. It was the duty of Clay to stand in the wagon entrance between the two double doors, inspect the contents of the various loads that passed through said entrance, and attend to the locking and unlocking of the doors. See's office was on the ground floor, and opened out into the yard of the prison, and this yard opened into the stockade, in which were located the prison shops, where the three defendants and Blake were working. About 3 o'clock in the afternoon of said day two gentlemen were admitted as visitors to the prison, and were sitting in the deputy warden's office talking to a prisoner, when the three defendants and Blake appeared at the door of said office, with pistols in their hands, and commanded Deputy Warden See to hold up his hands, threatening to kill him if he refused. See endeavored to draw his pistol, and one of the four convicts (perhaps Blake) fired his pistol, striking See in the wrist, and also wounding defendant, Vaughan, in the hand. Vaughan was in the act of grabbing See's hand when Blake shot at See. See was then disarmed by them, dragged out of his office and ordered to march between Blake and defendant Vaughan, to the wagon entrance; and the two visitors were also ordered to march, one by the side of defendant Ryan, and the other by the side of defendant Raymond. The wagon entrance was reached just as the inner doors were being opened to admit a two-horse wagon into the prison yard, and the four convicts rushed through said doors, taking with them See and one of the visitors; the other visitor managed to get loose and escape. The four convicts ordered Clay, who was on duty at that point, to hold up his hands, which he did, and he was then ordered to hold his hands higher. Some one in the wagon entrance then fired at Clay, striking him in the neck and killing him instantly. As the space in this wagon entrance was tolerably dark, neither See nor the visitor could recognize who it was that fired said shot; but the man driving the team (Charles Woodland) testified positively that the defendant Vaughan was the first man to rush into said wagon entrance, and that Vaughan fired said shot. Several other shots were fired by defendants and Blake in said entrance, some of them so close as to burn See's face with powder. The convicts ordered See to unlock the outside doors, but he told them that he could not and did not know how, and finally suggested to them that he could show them a better way out through the office. The convicts then went with See up to a door that opens into this wagon entrance from the guardroom, when Allison appeared at the door and ordered the men to throw up their hands, when one of the four shot and killed Allison. One of the four convicts then shouted, "Kill them all; let's shoot our way out." About that time one of them shot See in the shoulder and in the side, causing him to fall to the ground. One of the convicts said, "Capt. See is dead. Now get to work; we are losing time." Young was upstairs in the armory, but immediately came down to ascertain the cause of the disturbance. He saw the body of Allison on the floor; he was walking towards the door opening into the wagon entrance, when some one in said entrance shot him. Hearing the firing, Bruner ran to the inner doors of said entrance, and looked in through a small hole in said door. Some one in the wagon entrance commanded him to get away, and shot at him. These four convicts then tried to use nitroglycerin on the outer doors of the wagon entrance. They were successful, and a large strip was blown off of one of said doors, making a hole sufficient in size for them to jump through and make their escape, which they did. After getting outside of the prison, the three defendants and Blake ran together towards the Missouri Pacific tracks, and along said tracks west towards the freight depot. See procured a gun, and, in company with guard Bruner, followed them towards the depot. Bruner soon came within range of them, exchanged several shots with them, and wounded Blake in the leg. Blake was then captured and taken back to the prison, where he soon died from the effects of said wound. In the meantime the police of Jefferson City had been notified of this trouble, and had joined with prison guards and citizens in pursuit of the escaped convicts. The three defendants, seeing that Blake was disabled, jumped into a wagon and fired twice at Bruner and See. These defendants compelled the driver to get into the wagon with them, and began to whip the horses. Leonard Greene was standing near the wagon and undertook to stop the horses, when defendant Vaughan pointed his pistol at Greene and said, "Let go." Greene promptly obeyed. Vaughan took the lines and drove as fast as he could in a southwest direction. He drove until Ryan fell cut of the wagon and was captured. Before falling out of the wagon, Ryan fired his pistol once at Moerschel, who had caught the team, and then twice at the police, who were in pursuit....